Citation Nr: 21028268 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-18 896 DATE: May 10, 2021 ORDER Service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. Bilateral pes planus pre-existed entry into active service. 2. There was no increase in disability of the pre-existing bilateral pes planus during active service. CONCLUSION OF LAW The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1964 to September 1968. In November 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been added with the claims file. In January 2020, the Board of Veterans' Appeals (Board) remanded the appeal for further development. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). Service ConnectionBilateral Pes Planus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). A temporary flare-up or a passing change in symptoms is not sufficient to constitute an increase in disability under 38 U.S.C. § 1153. Davis v. Principi, 276 F.3d 1341 (2002). Service treatment records show that second degree, asymptomatic bilateral pes planus was noted at the Veteran's September 1964 enlistment examination. Thus, the Board finds that bilateral pes planus pre-existed entry into active service. Service treatment records also show temporary flare-ups of the Veteran's pre-existing bilateral pes planus but do not show an actual increase, or permanent worsening, of the disorder. In May 1966, he reported soreness in his left foot which the examiner attributed to pes planus. The examiner recommended arch supports. Later that month, the Veteran was placed on light duty. In August 1967, the Veteran reported that his pes planus was bothering him more lately especially on prolonged standing. Evaluation revealed second degree bilateral pes planus and the plan was to obtain arch supports. In April 1968, he reported that his arch supports were not effective. Evaluation revealed moderate pes planus, and the examiner returned the Veteran to full duty and recommended pain medication as needed. In June 1968, the Veteran reported that his pes planus was asymptomatic as he had a sit-down job. The examiner stated that current evaluation revealed nothing that would preclude the Veteran from field duty, but he could not state whether the Veteran would not have trouble if assigned to field duty. At the September 1968 separation examination, evaluation of the Veteran's feet was normal. Post service, the first evidence of pes planus appears in a July 2007 VA medical record which shows a past medical history of the disorder. Given the above, while the Veteran had temporary flare-ups of his bilateral pes planus during service on prolonged standing or walking, his condition returned to its original state when he no longer had to engage in such activities, as evidenced by being asymptomatic in June 1968 when he worked in an office. His pes planus was described as second degree, or moderate, at enlistment and in August 1967, over one year into service; moderate in April 1968, over two and one-half years into service; and mild to moderate in June 1968, a few months before discharge. Similarly, his pes planus was determined to be nondisabling at his enlistment and again in June 1968 while working in an office. Lastly, evaluation of his feet was normal at separation (with finding indicative of mild pes planus), and there is no objective evidence of symptoms proximate to service. All of the above indicates that the Veteran's pre-existing bilateral pes planus did not increase in severity beyond the natural progress of the disease during active service. Moreover, two VA examiners have opined that the Veteran's pre-existing bilateral pes planus was not aggravated by active service. In an April 2014 VA examination report, the examiner reviewed the Veteran's service treatment records, noting the June 1968 entry showing that his pes planus was asymptomatic as he had an office job and the examiner's statement that his pes planus would not preclude him from field duty. The examiner stated, based on a review of the medical records and medical literature, that the Veteran's bilateral pes planus pre-existed service and that there is no objective evidence that the disorder was aggravated during service. While the examiner had been asked for an opinion on direct service connection, the examiner aptly observed that the Veteran's pes planus actually pre-existed service and then provided a rationale supporting an opinion that the pre-existing pes planus was not aggravated by service. Also, while the examiner did not include it in the rationale, the opinion was clearly based on a review of the service treatment records showing that the Veteran's pes planus returned to being asymptomatic in June 1968, a few months before discharge from service, as noted earlier in the report. Thus, while the Board remanded the appeal to obtain a better-supported medical opinion, the Board observes that this opinion is still probative as to whether the Veteran's pes planus was aggravated during service. Hayes v. Brown, 9 Vet. App. 67 (1996). In a December 2020 VA medical opinion, another examiner reviewed the service treatment records and post service treatment records and stated that there is no objective evidence of a chronicity of foot pain to support a permanent aggravation of the pes planus. The examiner observed that temporary aggravation is plausible as individuals with flat feet have a higher likelihood of developing plantar fasciitis. The examiner observed, however, that the medical literature does not support a permanent aggravation or damage related to the pes planus. As the opinion was based on a review of the claims file as well as the current medical literature on pes planus, the Board finds the examiner's opinion to be of great probative value. Id. Accordingly, while the Veteran had temporary flare-ups of his pre-existing bilateral pes planus during active service, his bilateral pes planus did not increase in severity beyond the natural progress of the disease during active service. In reaching this conclusion, the Board acknowledges that a lay person is competent to give evidence about observable symptoms such as foot pain. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of aggravation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the question of aggravation. The Board has considered the Veteran's testimony at the November 2019 hearing that his pes planus was aggravated during service when his duties were changed and when he had to wear poorly supported canvas boots. However, the Board reiterates that the service treatment records show that his symptoms returned to baselineasymptomaticwhen he was reassigned to an office. Accordingly, the Board concludes that service connection for bilateral pes planus is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.